The People v. Fields

Westbrook, J.

— This action is brought to recover moneys which, as is alleged, were illegally and without authority of law paid to the defendant Fields, by the corporation of the city of Hew York, through its chamberlain, upon the check of its comptroller, Richard B. Connolly, countersigned by its mayor, A. Oakey Hall, dated June 3, 1870.

It will be unnecessary, in this ojfinion, to recite in detail the facts upon which the claim is founded, and it is only necessary to state that the defendant Fields received the money ($459,977.79) as assignee of a number of firemen of the city of Hew York, who insisted that under certain acts of the legislature of this State they were entitled to be paid for their services as such. The cause has once before been tried, and resulted in a recovery by the plaintiffs, which was not sustained by the court of appeals. The report of the case in that court (58 N. Y., 491) shows, that the court held that this money was received by Fields, and paid to him without authority of law, and that a cause of action rested “ somewhere ” against Fields to recover the sum so illegally paid (See opinion of Folger, J., pages 497 to 506, both inclusive).

The corporation of the city of Hew York was. made a defendant in the action. It originally answered, but before the first trial of the cause, the answer was withdrawn, and it now makes no defense. The effect of such withdrawal of the answer upon the suit, especially in view of the allegations of the complaint, “ that ever since the last mentioned fraudulent payment to the said Thomas C. Fields, the mayor, aldermen and commonalty of the city of Hew York, and all their several officers, if any, who might or could exercise any power or authority in the premises, and the board of supervisors of the county of Hew York, and all their several officers, .if any, who might or could exercise any power or authority in the premises, have with notice and full knowledge of such payment, and of its fraudulent nature, acquiesced, and still do acquiesce, in such fraudulent misapplication of the said moneys, and at all times since such application were and still are colluding and conniving with the said Thomas C. Fields, in the fraud aforesaid, and in protecting him from responsibility for the same by any judicial means or remedies,” was also considered and adjudicated in the court of appeals. It was there decided (see opinion aforesaid, pages, 508, 509) that, as the city had withdrawn its answer, the averments of the complaint we have quoted, even though denied by Fields, must, for all purposes of this action, be taken as true. That the admission thus made (to use the language of judge Folgee, on page 509) “ binds all parties to the actionj the party defendant who has admitted, and also the party co-defendant, because it takes from him the opportunity of saying that if recovery is had in this action against him, he is still liable to his now co-defendant in another action for the same cause.” When the cause was presented to the court of appeals, it rested upon a complaint, which, in its ■ prayer for relief, asked a judgment against the defendant Fields, in favor of the plaintiffs, for $459,977.79, with interest from June 3d, 1870, with costs of suit. Ho recovery, judging from the relief asked, was sought, which would enure to the benefit of the municipal corporation, the money of which had been wrongfully taken; and the judgment actually rendered and taken awarded the recovery to the plaintiffs, uncharged with any trust or duty in regard thereto to the party to whom it rightfully belonged. Upon the present trial — as all the facts necessary to a proper adjudication of the cause are set out in the complaint — the plaintiffs ask that the prayer for relief therein may be so amended that they shall demand to recover the judgment therein prayed for for the benefit of the city, and that the recovery and judgment shall show that the moneys awarded thereby, to be paid by the defendant Fields to the plaintiffs, shall be so paid to the latter as the trustees of, and for the benefit of the defendant, “ the mayor, aldermen and commonalty of the city of New York.” This new position of the plaintiffs involves two questions: First. Could the action in such new form be maintained ? And, Second. Would it be proper at this late stage of the cause to allow the amendment asked for ? These questions will be answered in the order in which they have been stated.

It was claimed during the trial of this action, and more especially upon the argument thereof, by the counsel of Mr. Fields, that the court of appeals had decided in this cause, and also in -that against Ingersoll (58 N. Y., 1), that no such action, even in the proposed amended form, could be maintained by the present plaintiffs. If that court has so held, the discussion must end. It certainly is my duty, as well as my pleasure, to follow the court of dernier resort; and it will be followed, too, without resorting to any quibble whatsoever, to avoid its plain and manifest holding, Has that court held as the counsel for Mr. Fields claims ?

In the case of The People agt. Ingersoll (58 N. Y., page 1) the city of New York was not a defendant, neither was the point now made involved. A reference to page 13 of the volume containing the report, will show that judge Allew starts the discussion of the main question in that cause by showing that the people sought to maintain that action upon the ground that “ the state owned ” the money sought to be recovered therein. This point is established by reference to the brief of the counsel for the plaintiffs; wherein and whereby it was distinctly claimed and urged, that the money could be recovered because “ the state owned it,” and with equal distinctness conceded that the action could only “ be maintained by the party who is regarded as the technical owner of the money; and the party so regarded, in the law, is the party to maintain the action.” It is evident, then, from the absence of the corporation of the city of New York as a party defendant to that action, and the claim made to the court in its support, that no such questions as this cause, .by the amendment to the complaint and the proposed judgment, involves were presented or discussed. All discussion, however, upon the question, that the Ingersoll case decides the point, that the present plaintiffs cannot maintain this action as trustees for the city of New York, is ended by the remark of judge Fol&ee in his opinion in this cause (58 N. Y., 510), which is : “ In The People agt. Ingersoll this court purposely refrained from declaring or even intimating an opinion upon this question.”

Neither, after a careful reading of the opinion of judge Folgeb in this cause, have I been able to reach the conclusion, that the court of appeals has decided that if the complaint therein had, upon the facts therein averred, asked a judgment in favor of the plaintiffs, as trustees for the benefit of the city of New York, and had in fact obtained such a judgment, that such judgment would not have been sustained. On the contrary, as I read that opinion, it asserts that the court is foreclosed from considering that question by the form of the complaint and the form of the judgment. On pages 511 and 512 it is said: “ Upon this appeal we are shut up to the question, whether the plaintiffs, the people of this state, are entitled to a judgment in their favor for the money illegally and fraudulently taken from the city of New York. They have recovered a money judgment, by which they are adjudged to be entitled, as owners, to the sums awarded. It - is not a recovery in trust or for the benefit of any person or corporation. The judgment does not recognize, but, on the contrary, is inconsistent with, any right or interest of any other party in, or to the money. The judginent is, that the plaintiffs recover the amount specified, and that they have execution therefor; and no other or ulterior disposition of the fund is made, or is consistent with the record. It is a legal judgment, founded upon a supposed legal and technical right of the plaintiffs to the money, m their own right!

It is impossible to mistake this clear language. It would be presumptuous in an inferior court to assume that the court of last resort had decided any other question than that to which it was expressly declared it was “shut upf and when that tribunal has also distinctly said that the question to which it was" so “ shut up ” was the “ supposed legal and technical right of the plaintiff to the money, in their own rightf it would be absurd to argue that it has determined the question whether the plaintiffs could not claim the money (not “in their own right”) as trustees for the benefit of New Yorh eity. For the purpose, however, of making light, if that be possible, still more manifest, the same thoughts are reiterated in the opinion on pages 512 and 513. On the latter page the argument made to the court, that the plaintiffs should be allowed to maintain the action as trustees for the benefit of the city, is met thus: “ It is noteworthy that there is no assertion anywhere in the complaint that this action is prosecuted for or in the interest of the city. Neither is it expressly or impliedly admitted, in the clause alleging collusion of the city officials, that the money or the rights of the same are now, or ever were, in the city, or in any person or body, other than the plaintiffs. Those who are not put forward as the cestuis gue trust, and in whose interest it is sought to sustain the recovery, are nowhere averred to be the real parties in interest, and the relation now assumed by the plaintiffs, of trustees, is not averred in the complaint.” The learned judge then proceeds to say that the Ingersoll case is “ decisive of the present question.” A remark (see quotation from opinion previously given, to the effect that the court had expressly reserved in that case the question of the right of plaintiffs to maintain as trustees) impossible to be made if the question we are now discussing was involved, and that the judgment could not be maintained (see page 514), because it “ awards the money to the plaintiffs, to the exclusion of the city.”

It is safe, then, to assume that the court of appeals has not decided that the present plaintiffs cannot, by proper amendments to the complaint, and by a judgment which gives to them the money in trust for the city, maintain this action. That question is still open. Bearing in mind, then, that it has been held that Fields has no title to the money paid to him June 3, 1870, and that a right of action therefor rests “ somewhere;” that from the allegations of the complaint and the withdrawal by the corporation of the city of Hew York of its answer, it must be assumed that the corporation, through its officers, was colluding with Fields, and refused to bring suit for its recovery; and further, that an individual tax-payer of the city (same opinion, page 509) cannot bring this action, we are in the further discussion of this cause brought face to face with this question : When a clear right of action exists against a party to recover a large sum of money belonging to a municipal corporation, and which he has wrongfully obtained, to the great injury of honest tax-payers, by fraud and collusion with the municipal officers, which the corporation as such refuses to sue for,' because its officers collude with the wrong-doer, and to recover which the individual tax-payer has no standing in court, must such money remain in the wrong-doer’s pocket, because there is no party competent to sne, who is willing to prosecute? The question, surely, is a startling one, and if it requires an affirmative answer, then the wisdom which has molded our state government, and framed its laws, has been sadly at fault. Municipal corporations are but the creation of the state, organized not only for the good of the locality, but for the general weal of the whole. Has the power'which creates no authority to preserve ? Must express legislation for every possible contingency, and the absence of the letter of the law, marking out with distinctness the course to be pursued, be a prohibition upon the right of the state to intervene for the protection of its own offspring ? The argument which affirms the want of power in the people to maintain this action, in the proposed amended form, certainly overlooks the great right of self-preservation by government — a right inherent, not only in the individual citizen, but also in the state in which he resides. It resembles very much the question propounded some years ago, when rebel armies were marching against the national capítol for the avowed purpose of subjugation: “ Where is the clause in the federal constitution which authorizes the government to raise an army to coerce a state?” The letter of the law was then invoked to paralyze the nation’s arm, overlooking the great fact, that armed men were then marshaled for aggressive war, the success of whom would obliterate the very instrument to which the appeal was made. And so the argument now presented reaches this logical conclusion. The thief may steal from a municipal corporation, by and with the aid and connivance of fraudulent officials — steal until the substance of its people shall be consumed by the levies of the assessor, and the calls of the tax gatherer; steal until the prosperity of the entire commonwealth shall be affected by the unliallowe’d combination for plunder, in and upon one of its parts; and yet the state, because no express statute authorizing it can be found, shall be powerless to intervene by action in its courts for the protection of the honest citizen thus plundered—a duty as sacred and as clear to him as is that of allegiance on his part to the state, the mutual observance of which should be the highest aim of both, and to secure which, government was originally established. Such reasoning upon the absence of express statutes, to my mind, carries no weight; but, on the contrary, I insist that when events have occurred such as this cause presents, the wrongful possession of the money of a city by collusion with dishonest municipal officials, who refuse the use of the corporate name in a suit to he instituted for its recovery — the prohibition upon the individual taxpayer from becoming the champion for the protection of the community in which he resides—the people can interfere. Even though section 111 of the Code shall receive its strictest construction, who shall say that the state is not “ the real party in interest 2” It is a part of its territory, its people, which has been plundered, and the restoration to it, and to them of that which has been wrongfully taken, is at once the highest duty, and the gravest interest of the commonwealth. Ho argument, then, which ties every arm, shuts up every avenue to legal redress, and gravely urges that the plunderer shall escape with his booty, because the law is powerless to prevent it, can prevail; and if in the history of the past no exigencies have arisen which have made an action like this necessary, the existence of them now under the well known rule of common law, that “for every wrong there is a remedy,” would induce us to hold that this suit, in its proposed amended form can be maintained. There is, however, no occasion to create an entirely new mode of procedure. The records of courts show that principles have been established which fully meet this case.

By section 1, page 179 of 1 Revised Statutes (Volume 1, Edmonds' edition,page 180), it is enacted': “It shall be the duty of the attorney-general to prosecute and defend all actions, in the event of which the people of this state are interested.” It is not my purpose to invoke this part of our statute law to justify a needless intermeddling by the state with the officers of the local municipal corporations which it has created. Such a case is not before me. The inquiry is, can the state interfere, when such interference becomes necessary for the protection of the tax-payer living in the locality, and for the protection of the state, the prosperity of which depends upon that of the individual citizen, upon the ground that in sioeh an issue, “ the people of this state are interested 2” In answering this question in the affirmative, I cannot truthfully be accused of endeavoring, by a forced construction of the statute, to confer new or dangerous powers upon the attorney-general, as the following cases will show :

In Davis & Palmer agt. The Mayor, &c., of the City of New York (2 Duer, 663), Judge Dube, after stating that he originally had doubts as to the powers of the attorney-general of this state being as extensive in the maintenance and defense of actions as those of the officer having a similar name in England (pages 666, 667), said: “ But an examination of the ¡Revised Statutes, which defines the powers and duties of the attorney-general, had removed the difficulty. By the rule of the common law, the attorney-general is a necessary party in all suits in which the crown is interested, and by the first section of our statute (1 R. S., 179) it is made the duty of the attorney-general to prosecute and defend all actions, in the event of which the people of this state shall be interested. In other words, in all such actions, he is made a necessary party. In England a corporate act, affecting injuriously a whole community, is deemed a public wrong which, as such, the sovereign is bound to redress; and it is for this reason that, in all suits in which this redress it sought, the crown is held to be interested. The doctrine, and the reasoning, it seemed to him, were just as applicable here, where, fortunately, the sovereignty resides, not in an individual, but in the people; nor could he doubt that the people, as the sovereign power, ought to be considered as interested in the event of every suit in which the illegal act, which is sought to be restrained or annulled, may, from its nature, be justly treated as a public wrong.” ,

In applying the decision just quoted to the cause under consideration, it is only necessary to say that the act sought to be tl cmnullecl” in this case was the act of a municipal corporation, or its officers, and it was so wide sweeping in its consequences as to injuriously affect every tax-payer in the most populous city on this continent, and the abstraction of money wrongfully was also so large that it, and its kindred acts also involved in the decision, may be justly called the “public wrong” of the great municipality which endured it.

In The People agt. The Mayor of New York (32 Barbour, 35), it was held that the corporation .of the city could be restrained in a suit by the plaintiffs, from making a contract with Fairchild, Walker & Go., for the construction of certain works in connection with the Croton aqueduct department.

In The People agt. The Mayor of New York (32 Barbour, 102), it was held that the plaintiffs could maintain an action to enjoin the execution of a lease, by the defendants, of the -Brooklyn ferries; and judge Hogeboom (page 104) says: “I think, too, the people are the proper parties to enforce the remedy. They represent the general public — the body of citizens who are aggrieved.”

So, in March, 1870, the general term of the supreme court of the third district, composed of judges Hogeboom, Peokham and Ingalls, held, in The People agt. Giles M. Benedict and others (I have been unable to find the case reported, but have the opinion of judge Hogeboom now before me), that these plaintiffs could enjoin the issue of town bonds in aid of a railroad company.

On what principles were these, and many other actions, which the reports record, sustained? Was it not under the section of our statute which we have quoted, and the general axiom that the state can, by action, redress, what judge Dues properly called it, a “public wrong?” And if the state may interfere to prevent the injury, may it not so do for its redress, when accomplished? The precise form of the relief can make no difference. Gan the state interfere for the protection of an entire locality when the local government refuses to act, and when the individual tax-payer has no standing in court for that purpose? These cases which we have cited, and also that of Doolittle agt. Supervisors of Broome County (18 N. Y., 155), were wrongly determined, if this action, in the form now proposed, cannot be sustained. It is true, in the cases cited, the actions were in the name of the people simply, without any express averment that they were brought for the benefit of the locality. From the form of the relief asked, however, the prevention of acts that thé people had no direct interest in the questions involved was manifest. In this case, as a money judgment is sought, the relief asked and the disposition of the money recovered should, in view of the opinion expressed by the court of appeals, expressly show that the city of Hew York was to receive the benefit thereof.

The conclusion, then, which we have reached is, that this action, with the amendments to the complaint asked granted, can be sustained. We should so hold it as an original question, and we have no difficulty in finding abundant authority in our own state to support it. Ho combination of men can obtain control of a county, town, or city government, and by aid of' its machinery which they control, plunder its citizens at pleasure without a possibility of any suit which can be maintained arresting the evil, and compelling a restoration of the fruits of their crime. The oppressed inhabitant of the locality is not without redress. The state, as has before been said, owes to him, in return for his allegiance, its protection, and that protection will be exercised not only by an action to restrain the intended wrong, but also to restore its fruits, when they have been plucked by the hands of fraud and collusion. This doctrine seems to me to be so elementary and clear that only the eminent position of the counsel who has attacked it has made its attempted demonstration necessary.

This cause has thus far been considered without any reference to the recent act (chap. 49, Laws of 1875), passed since the case was before the court of appeals, and entitled “An act to authorize the people of this state to bring and maintain certain actions for the recovery of public moneys and property.” The determination of all the questions which the action involves renders the examination of the effect of this statute necessary.

In the proposed discussion it is conceded that the law must cover past transactions, either in express words or by necessary implication, to - affect the determination of this cause. It does so very clearly. By the first section thereof, the people are authorized to maintain an action to recover “ money, funds or property,” “ held or owned * * * by any municipal or other public corporation,” as well in any case where the same “ has heretofore, without right, been obtained, received, arrested or disposed of,” as in the case when any such money shall be hereafter, without right obtained, converted, or disposed of; ” and the act not only gives such right of action to the people, but declares they a have” it, i. e., they possessed it when the act was passed. Its language is “ the people of this state have in every such case, and shall have a right of action for the same,” &c. The second section also speaks of cases “ when an action has been heretofore brought,” as well as of those which “ may hereafter be brought,” and the third section makes provision for the distribution of the money or recovery which may be had in any case, “ in the first and second sections of this act mentioned,” thus demonstrating that the act was designed to reach pending suits, and, of comse, this particular one as well as others. Is such a law invalid ? To this question the argument must next be addressed.

It may be premised that the law takes nothing, whatever, from the defendant Fields. The money sought to be recovered in this action does not belong to him — that the court of appeals has expressly held; he must pay to some person, and to such a party as the law shall designate. The act does not take the property of A. and give it to B., and if it did, it is not readily perceived on what principles an outsider (and such Fields is on this question) could object. It simply provides a remedy for the recovery of property belonging to a municipal corporation, giving to such corporation the benefit thereof when received. As the laws creating the city of Hew York were passed by the state, its machinery and mode of raising money and acquiring property, and its right to sue and be sued, devised and framed by it — may not the same power which gave the right to live and to acquire, also create or. change the machinery and remedy to preserve and recover % The question readily answers itself, for it surely will not be argued that the authority which can speak into existence is powerless to preserve its creation. The discussion then must be limited to the legislative power to affect Fields.

Mr. Fields, then, is the custodian (the term applied to his dealings with the money is, perhaps, questionable) of money, to which he has no title, and which he refuses to pay. The legislature make a remedy, already sought, applicable to his suit. That remedy seeks not his but that which is another’s, that the true owner may receive its benefits. It is difficult to see, why this cannot be done, and to discover the right which is violated. It is unnecessary, however, to argue, as the power to enact such a law is abundantly settled.

In People ex rel. Israel agt. Tibbetts (10 Cowen, 384), a subsequent statute was held applicable to proceedings in the nature of a quo warranto already commenced.

In the Matter of Newell Smith (10 Wendell, 451), it was held that the judges of the court of common pleas of the county of Oneida had power to expel Smith from the county medical society, and to declare him forever thereafter incapa: ble of practicing physic and surgery within this state, under a law passed subsequent to the acts for the commission of which he was expelled. The court saying that “ the subsequent statute merely changes the form of proceeding.” Does the act, the effect of which we are discussing, do more % The most that can be said is, that prior to its passage the city of New York was the only proper plaintiff to recover the demand, now the people may sue therefor for the benefit of the city. The form of the proceeding is alone changed.

In Gildersleve da Roberts agt. The People (10 Barb., 35), a subsequent statute, prescribing the remedy upon the prosecution of recognizances, was held applicable to those taken prior to its enactment.

In Town of Duanesburgh agt. Jenkins (57 N. Y., 178) it was held: “ The question upon a trial is upon the facts in the case; what does the existing law pronounce as to the rights of the parties ? Where, therefore, a statute affecting questions involved in an action is passed after the commencement of the action, and there is no exception as to existing suits, the rule of law announced by the statute must be applied, on the trial of such action.”

In The Syracuse City Bank agt. Davis (16 Barbour, 188) it was held: “ Statutes are valid which give remedies where none existed before, through defects that would have been fatal had the legislature not interfered and given a perfect remedy by curing intervening irregularities. In such cases no rights are interferred with, which are vested, in such a sense as to come within the rule that forbids the interference of the legislature.”

In Bacon agt. Callender (6 Mass., 303) a statute passed during the pendency of action was held applicable to it, and chief justice Parker (page 309) says : “ And if it were competent for the legislature to make these provisions to affect actions after to be commenced, the same provisions might apply with equal authority to actions then pending.”

In Billings agt. Segar (11 Mass., 340) it was held : “ The statute of 1811 (chap. 23, sec. 4), giving to defendants costs in actions in which the plaintiffs appeal from the judgment of the circuit court of common pleas in a personal action, and fails to recover more than 100 dollars in this court, extends to actions pending'at the time the statute was enacted.” The court said: “ However great the hardship is upon the plaintiff, it is beyond the power of this court to relieve him. It makes no difference that the action was commenced before the passing of the act.”

In Reed agt. Fullum (2 Pickering, 158) it was held: “A bond for the debtor’s liberties, restrains the debtor within the liberties established by law for the time being; that the statute of the 10th of February, 1823, narrowing the liberties in Suffolk after the fifteenth of May following, was not unconstitutional as applied to a bond given before the passage of that act, but that the principal in such bond, having, after the fifteenth of May, made use of the liberties in their former extent, was guilty of an escape.”

In Holyoke agt. Haskins (9 Pickering, 259) it was held that an act authorizing the representatives of deceased parties to continue an action, was valid as affecting suits then pending. It may be observed, that the effect of such legislation was to make the defendant .accountable in that action to a party to whom he was not so accountable when the action was begun; which principle, necessarily, covers the point under discussion.

In Bemis agt. Clark (11 Pickering, 452), it was held that an additional remedy to be given by a judgment in an action on the case for a nuisance, to wit, the issue of a warrant to abate it, applied to suits pending when the law was passed.

In Wilbur agt. Gilmore (21 Pickering, 250) it was -held, that a statute giving an executor the right to “maintain trespass queme clausum fregit for an injury done to'the land in the lifetime of the testator * * * was not unconstitutional when applied to a trespass committed before this provision went into operation, inasmuch as it affects the remedy only.” This was held, too, in regard to a claim which had been sought to be enforced by the executor in an action brought previous to the passage of this statute, in which, on demurrer to the declaration, it had been held that the plaintiff could not sustain the suit. Does not this case decide every objection made by the present defendant ? It gave a cause of action to a party for a past act, when he had none before. The apparent distinction, that in this case an action is pending, is answered by the opinion of the court in Bacon agt. Callender (6 mass., 303), above cited, to the effect that if the legislature may give a remedy for past acts by subsequent laws, “ the same provisions might apply, with equal authority, to actions then pending.”

In Florentine agt. Barton (2 Wallace, 210), the supreme court of the United States held, that proceedings of administrators, to sell the real estate of the intestate for non-payment of debts, could be controlled and governed by a special statute, passed by a state to meet that case, although such special act contained provisions directly repugnant to the general one applicable to the case at the time of the death, and at the time of the qualification and appointment of the administrators. The manifest effect of this decision was to provide a new and special mode of taking property out of the hands of parties, which mode was created after their rights, if any, had accrued.

A very large number of kindred cases can be found in the books, but their citation would swell this opinion to an unreasonable length. The conclusions drawn from those cited are, that new remedies can be created to enforce a claim existing at the time of their creation. That such new remedies will affect existing suits, and that the right to costs in a pending suit may be entirely changed by subsequent legislation, and that a cause of action for a past act can be given to a party who had no power before to maintain an action for its recovery. These principles cover every objection which has been made to the act of 1875, and induce me to hold, as I should were the points new, that this action can be maintained by force of the statute recently passed.

This leaves but one other question, and that is the propriety of allowing the amendments to the complaint, which shall show the recovery sought is for the benefit of the city of Hew York.

Section 173 of the Code seems to me to be ample to warrant the application. Every fact upon which the right to recover depends is averred in the complaint. Concerning these facts there is no dispute whatsoever; they are admitted and confessed. Uo other trial could present any others changing this transaction. The proper parties are all before the court, and the proper plaintiffs ask a recovery, but in their prayer they fail to state that they seek it for the benefit of others. With every fact, and every party before us, can any good reason be assigned for turning the plaintiffs out of court, that a new suit may be brought in which the ulterior intended disposition of the recovery shall be stated, instead of permitting the present complaint to expressly' declare that, which has always been understood to be its known aim and object % I confess I see none, and shall allow the amendment.

In Bank of Havana agt. Magee (20 N. Y., 355) where an individual banker had brought suit under a corporate name when no corporation existed, the court of appeals held that the trial court should have allowed an amendment.

In Hall agt. Gould (13 N. Y, 127) it was held : “ The court, at the trial, may remedy hy amendment a variance between the case made by the proof and the complaint, where all the facts essential to the rights of the parties are put in issue by the answer and reply.” If that can be done, may not the prayer for relief be amended when all the facts are averred, and when concerning their existence there is no dispute ?

Oases, however, are unnecessary. The amendment seeks to charge no new fact; to bring in no new party ; to change no right or remedy of or against Fields. It asks’that the record of this cause, shall be so amended that the accountability of the plaintiffs to the municipal corporation for the sum obtained shall expressly appear. To this there can be no possible objection.

Section 173 of the Code, however, declares that amendments should be allowed “ on such terms as may be proper,” and that brings me to the question of “ terms.” Whatever may be my views as to the propriety of the action under the complaint as it is, it is enough for me to know that our court of ultimate resort has held, with its prayer for relief as it is, and the judgment as originally taken, it cannot stand. Up to the present trial the defense has been justified, and it would be manifestly unjust by an amendment now made to deprive the party of costs to which a decision of our highest tribunal entitles him.

The amendment should be allowed on payment of the costs of defendant Fields up to the present trial; such costs, however, shall be a credit and allowance upon the recovery in this action. Perhaps the recent act has made the amendment unnecessary, as its provisions declare the trust which is sought to be expressed. Such expression, however, can do no harm', especially as, if not made, it may be urged that the language of the recovery is at war with the provisions of the statute. As that act has made a remedy already taken effectual, it should not deprive a person of costs to which he was entitled at the time of its passage. I concede that the cases cited would justify me in withholding them, but my own judgment of right is better satisfied by allowing the defendant Fields costs up to the time of this trial, the same to be a credit upon the recovery, and these costs are to be recovered whether the amendments are made or not.

Findings and a judgment will be prepared, and submitted in conformity with this opinion.